Friday, December 14, 2007

Who is a combatant?

Jus in bello prohibits deliberate killing of non-combatants. But who is combatant? Plainly, a uniform a combatant does not make. If a dictator decreed that all toddlers are to wear military uniforms, that would not make them into combatants. Nor would they be combatants if he issued them with guns which they never fired. (The question of what should be done if they did shoot is a more involved one.)

I find particularly challenging the case of people pressed into military service who have the intention to refrain from violent acts. Under compulsion, they wear a uniform and carry a gun, but are no more combative than an unarmed toddler. In World War II, only 15-20% of American soldiers themselves along the line of fire would fire at the enemy in any given battle, even if the engagement lasted two or three days (I got this from Grossman's book on killing; Grossman doesn't say if the same 80-85% of soldiers were refraining from shooting in different engagements).

Suppose, then, that you are fighting a just war, and know (e.g., from intelligence reports) that 80% of enemy servicemen have a personal commitment either never to shoot or to shoot only in the air, and are wearing the uniform and carrying weapons under compulsion. You have an armed enemy serviceman in your gunsights. You do not have time to observe him long enough to figure out if he is one a uniformed pacifist or a soldier. Is it licit to shoot him?

If not, then justly waging wars against enemies whose soldiers are likely to be like that seems nigh impossible. On the other hand, how can it be licit to shoot someone who is more likely than not as innocent of bellicose activity as any conscientious objector? If you are a police sniper who sees in the distance five people, one of whom you know is a terrorist about to trigger a bomb via remote control and the other four are innocent bystanders, surely you are not permitted to pick off all five when you can't tell which one is the terrorist.

I see five solutions to this problem:

Drop the moral prohibition against killing innocent people who aren't any danger to anybody. This seems clearly wrong.

Prohibit lethal engagement in such situations. This makes much of what most people would consider the just conduct of war impossible. But perhaps double effect would still allow use of weapons not targeted at particular individuals, with the intention of killing the guilty.

Argue that by wearing uniform and carrying a gun on the side of injustice in a war, one has made oneself a part of an unjust war effort, and that in and of itself makes one a combatant. After all, even if one is not shooting oneself, one is boosting the war effort by providing a certain amount of cover for those who are shooting, etc. And anybody who is boosting the war effort on the side of injustice may be fairly shot. This seems mistaken. If our own POWs were forced to wear enemy uniform, and at gunpoint mixed with enemy troops, we would not consider them combatants on the enemy side--i.e., traitors--as long as they refrained from shooting at us. And the nationality of compelled uniformed people should make little moral difference here.

Follow Germain Grisez in saying that even in wartime, it is always wrong to intentionally kill anybody, guilty or innocent. But one can use guns and bombs and the like to intentionally make enemy soldiers incapable of harming us, and we can do this by the Principle of Double Effect (PDE) without intending that the enemy soldiers die. Their death is not a means to our goal of self-protection. All we need for self-protection is that they be out of commission for the course of the war. If this is correct, then it does not matter if 4/5 of the enemy is uniformed and pacifists, since their deaths are "collateral damage", just like the deaths of civilians standing near the enemy HQ when the HQ is bombed. But is this plausible? While some weapons can be thought of as disabling the enemy, with the enemy's death an unintended side-effect (e.g., if I hit an attacker over the head with a club, then it is plausible to suppose that I do not intend to kill him, but merely put him out of commission; if he dies, that's an unfortunate side-effect). But it feels like a stretch to use this kind of justification for all weapons. Suppose a sniper shoots an enemy soldier in the head. Let us say, with Grisez, that this is to disable the enemy soldier. But how is the sniper disabling the soldier? By destroying the brain. And how does destroying the brain disable the soldier? By killing him, it seems. And so the killing is intended, as a means, contrary to Grisez. Now maybe one can argue that one is merely trying to destroy the parts of the brain involved in fighting, and the fact that one destroys the whole brain is a mere unintended side-effect. This feels sophistical. And, anyway, if it is wrong to kill the innocent, it seems to be also wrong to intentionally destroy healthy portions of their brains.

Use another Double Effect line of justification. One aims at the enemy serviceman's heart and fires, say. But one isn't intending that the enemy serviceman be dead, or even that his heart be unable to oxygenate his body sufficiently for fighting (as per the previous suggestion). Rather, one is intending a conditional effect: One is intending that this serviceman be dead, or at least that this heart be unable to oxygenate his body sufficiently for fighting, if he is genuinely a combatant. One doesn't know that he is a uniformed pacifist (if one knew that, shooting him would be plainly wrong), and one's intended goal can be conditional. This solution strikes me as the least unsatisfactory of the five, but is not that satisfactory. It would allow the police sniper to shoot the five people one of whom is a terrorist. On the other hand, this solution coheres with the following intuition: It makes relatively little moral difference whether you throw a grenade at five people, killing them at once, or shoot each one individually. (Though the latter may be much more traumatic.) But it could be licit to throw a grenade at five people, four of whom were innocent and one of whom was a terrorist about to kill many people.

Here is an interesting and, I think, important conclusion. When deciding whether the proportionality condition in jus ad bellum holds--whether the war would eliminate more evils than it would cause--one needs to count among the evils the many non-bellicose enemy soldiers who would die as a result of the war. This can have real consequences. Suppose that one estimates that if an invading force is unopposed, they will murder 500,000 of one's people, some soldiers and some non-soldiers, but will cause no other evils. Suppose, further, that by opposing them, one will be able to reduce the death-toll on one's own side to 100,000, but one will need to kill a million enemy soldiers to do so. In killing a million enemy soldiers, one might be killing 800,000 completely innocent and non-bellicose people. Here, the proportionality condition would not seem to be met--one kills 800,000 innocent people to save 400,000. One should instead surrender. Unless, of course, one can argue that the enemy will not stop at killing the 500,000, which in practice is likely. But in any case, one must take into account the innocent death toll among enemy soldiers into account when figuring out if a war is licit.

10 comments:

You should note that modern methods of training, at least in our army, have dramatically increased the proportion of soldiers who actually shoot to kill—I do not know the number, but it is a decided majority.

The case where one own soldiers are mixed among the enemy's deserves further consideration. Compare the notion of a policy against negotiating with hostage takers, where one decides that only by consciously encouraging the enemy to kill a small number of one's own (hostages already taken), one prevents a situation where many more of one's own would be in danger. Now, if the enemy tries to use one's soldiers as human shields, it may be necessary not to refrain from killing one's own, to prevent many more of one's own from being endangered by use as human shields.

Your final analysis implies that the only evil justifying a war is death—but it could be argued that being forced to endure subjugation, humiliation, violation, impoverishment, and enslavement are worse, and justify killing in self-defense even where lives are not directly endangered. (And if one can be sure that the enemy's army will do none of these things, then one is probably on the wrong side.)

Yes, I know that modern American training has done this. I suspect one of the ingredients here is that the US now has a volunteer force. Moreover, I would kind of hope that among conscripts fighting an unjust war, there would be many refraining from killing.

It's wrong to deliberately encourage anybody to do wrong, no matter what the overall outcome. But perhaps by "consciously encouraging" you don't mean "deliberately encouraging".

One can probably shoot through an innocent human unwilling shielding a guilty human without intending to kill the innocent human, and hence I think there could probably in principle be a double effect justification. However, the cost in terms of psychological and character damage to the shooter needs to be taken into account. Here, at least, it might be correct to say that the cost is worse than death.

I agree that there are other evils that are relevant to self-defense. That's why my remarks carried the "but will cause no other evils" proviso.

I do think, however, that death is on an individual level worse than many of the items on your list. Most of us would be willing to individually endure most if not all of the items on the "subjugation, humiliation, violation, impoverishment, and enslavement" list in order to escape individual death. Take, for instance, a concentration camp. While some did try to escape, the high likelihood of being killed while trying to escape kept most from the attempt. But if what one suffered in the camp--namely all the items on the list--were worse than death, then trying to escape, even if the chance of success were only 0.1%, would be entirely appropriate. We could say that the inmates' will was broken and they acted in an irrational manner in refraining from escape. But I would not have the guts to say that, and I think they did exactly right by trying to survive and keep what dignity they could.

That applies to a choice between one's own death and slavery.

It is heroic (and hence reasonable) to sacrifice one's own life to save another from slavery and the other evils on the list. But it does not seem right to sacrifice an innocent other's life to save either oneself or another from slavery.

But would it be OK to take actions that have the foreseen effect of the death of one innocent person in order to save two from slavery? Maybe. So, certainly the items you list need to be taken into account.

And it may also be the case that a country is ethically more than the sum of the parts, and that over and beyond the evil of individual humiliation there is a further evil of national humiliation that needs to be accounted for. Maybe.

I have several thoughts here, one of them is that there is considerable moral leeway to err on the side of caution. Example: someone invades my home, brandishes a gun, threatens to shoot me and rape my wife. Maybe he will do this, maybe he's just bluffing. But I at least have no problem using lethal force against him; it's not my job, at this point, to read his mind. I'm not deliberately killing an innocent; I'm deliberately killing someone who may or may not be innocent.

Now it seems to me that the unfortunate conscript is in the same boat as my home invader. For whatever reason, he is wearing a uniform and carrying a gun, which is tantamount to a threat to kill me (a soldier on the other side). Maybe he will do this, maybe he won't. Maybe he's being coerced into doing it. But regardless, I would think it's perfectly legit to use lethal force against him.

All that said, you would hope that the generals would look for alternatives at the strategic level if there were a large number of unwilling conscripts on the other side. (I recall reading somethng about the first Gulf War, in which it was alleged that the US used bulldozers to bury alive large numbers of Iraqi conscripts holed up in trenches. Probably that was not a good idea, morally speaking.) But for the guy in the trenches, I think firing away is fine.

I agree that something like "reasonable presumption" should be used, and for safety's sake one may be somewhat flexible there.

In the case of the person brandishing a weapon threateningly, he's either crazy, or guilty at least of threatening you, and I think this may already count as an assault in law (albeit without battery).

I am worried, however, that the "reasonable presumption" breaks down completely in cases where one knows that the majority on the enemy side are not really combatants.

Also, I think one needs to distinguish between x posing a threat and x intentionally posing a threat. An innocent enemy national with a gun who has electrodes implanted in his muscle so that he is moved by remote control from the headquarters poses a threat, but does not do so intentionally.

I know that there is a long tradition in thinking that the ordinary soldier can leave these kinds of questions to the authorities, at least when there is no completely manifest injustice (e.g., shooting people who are unarmed and are clearly no danger).

I think there is something to that, but there are defeaters.

First, consideration of the fact that it cannot be the case that both sides are genuinely waging a just war should make one cautious about attaching a high prior probability to the pronouncements of governments with respect to the justness of their cause. Now in the case of free and democratic governments one might have some reason to presume justness if justness is claimed and is not self-evidently absent (the relative rarity of wars between countries with free and democratic governments, if it could be statistically established, would be relevant), but I think one needs to be careful.

Second, relying on one's superiors is highly problematic if one knows from their public statements that the principles by which they make the determinations are not the right ones. For instance, if one should know that one's superiors consider the life of innocent enemy nationals to be of significantly lower weight than that of one's compatriots, then one has good reason to be suspicious of their orders.

I am torn between three views.

(i) If you know your country is in a just war, you are morally required not just to refrain from bellicose activity, but also to refrain from activity that will be reasonably seen as bellicose (e.g., wearing a uniform and carrying a gun).

(ii) If you know your country is facing an enemy force the majority of whom are non-bellicose, then you are not permitted to target enemy soldiers absent particular evidence that they are bellicose. (It can probably be reasonably presumed, for instance, that enemy artillery crews are bellicose.)

(iii) The final double effect account in my original post is correct.

I am not happy with any of these, but I don't currently see any way out of this trilemma. I don't like (iii) very much--it seems to stretch double effect to its breaking point. Option (ii) is counterintuitive to me--my inclination is not to be too revisionist.

And I am inclined to think option (i) is too demanding. At least I imagine that if I were drafted into an unjust war, and given the alternatives of death or wearing a uniform and carrying a gun, I would not be acting wrongly if I agreed to be drafted, as long as I took good care to ensure that I didn't shoot anyone.

But I am now shifting a little in favor of option (i). The soldier who does not shoot still substantially cooperates with the war effort. This is not formal cooperation with evil in the traditional Catholic sense of the term (that requires sharing the ends of the malefactor, and such a soldier may not do that), so probably there is only a presumption against it. But the evil one is "materially" cooperating in has few if any equals. To lead an unjust war is pretty much one of the worst sins a human being can engage in. The presumption against cooperating with an evil of such staggering magnitude is of very high weight, and it may be that it is of high enough weight that it easily outweighs one's own life. (But what if one has dependents? Things may get more complicated then.)

In participating in an unjust war, even non-bellicosely, one boosts one's side's apparent numbers, one deflects bullets that would go to one's bellicose comrades, and one potentially contributes to the psychological trauma of an innocent enemy soldier on the side of justice (assuming the other side is on the side of justice--it may be that neither is) who might kill one. Moreover, such participation involves a different kind of moral problem. By standing besides one's comrades-in-arms, even on the unjust side, one making it reasonable for them to trust one to defend them should they need defending, but if one stands there with a pacifist commitment, one is prepared to betray one's comrades' trust.

So it may well be that (i) is true.

However, if I am lucky, someone here will find a better answer than any of (i)-(iii).

And if I am really lucky, I will never face such hard questions in practice, or have to advise anybody who does.

It is worth noting that people were often taken into concentration camps with their family members, so that escape would mean abandoning them; and that the punishment even for an attempted escape (let alone a successful one) would not fall only on the one who tried, but communally on all, or on some selected at whim. They could not make these decisions only for themselves.

You might find it helpful to consider the way that (as I understand it) real militaries act during a situation somewhat similar to the one your propose--when a war is winding down, in the middle stage when the enemy's defeat is a certainty but some units may not yet know it, or may have resolved on suicidal defiance. The decision to ignore enemy soldiers can be made in two ways.

1. Certain enemy soldiers may detach themselves from their units and surrender, or desert and go to a neutral country (even home, if their government has collapsed).

2. An entire unit may unofficially make it clear that the commanding officer does not intend to do any further fighting—for example, the colonel of the enemy regiment holding the other side of the river (without disarming) passes word that he know the war is over and that he will not be obeying any order to advance.

The important thing is that while a soldier remains part of a unit and a chain of command it is impossible to distinguish that soldier as an individual in order to spare him, even if he deserves to be spared.

I think there is a fair bit to say in favor of (i) too. Here’s one line of argument.

If you know that the enemy army has a 20% rate of serious belligerents, I think it is at least reasonable to shoot them on sight. (“Reasonable” meaning something like, “you can see why someone would think this, even if they’re wrong.”) However, if you are in a town where you know that 20% of the civilian population is engaged in guerrilla warfare against you, it is totally unreasonable to go shooting civilians on sight. The uniform makes a difference; it declares a presumption of hostility. The presumption can be defeated, but it’s the non-bellicose guy’s job to defeat it, e.g. by surrendering on sight.

(I remember reading about the most recent Iraq conflict that many Iraqi tank commanders had their tanks’ gun turrets pointed backwards, and that this was taken, rightly, as a sign of non-bellicosity.)

It also seems to me that the conditions of warfare in which this situation can arise are historically rare. In pre-modern, hand-to-hand combat, either you attack or you don’t. Archers shooting longbows just aimed in the general direction of massed troops. People using reasonably sophisticated long-range equipment, like missiles or bombers, have to actually sabotage their missions, detectably by their superiors, in order not to be bellicose. It’s the infantryman with a rifle—a weapon long-range, accurate, but unobservable in its effect—that makes the most trouble here.

I also think P.M. Rodriguez’ final comment contains some wisdom. “Combatant” is probably not a description of someone’s mental states, but of his social situation.

Hope all is well at Baylor.Great to hear from you!Apologies for not getting back to you earlier but with finals and the holidays I barely had time to think (dangerous for a philosopher)

This is an interesting question.

I have four thoughts (They may be related - I would have to think about it more)

1. I worry about the restriction of combatant to one who is shooting at someone else. There is, of course, the epistemic question of who can one can treat as a combatant. And the ontological question of who is a combatant. It is not clear to me that this is simply an epistemic question. The non-bellicose enemy soldier may well be a combatant even if he is firing over my head. He/she may be supporting other soldiers qua soldiers. Uniformed members of the military who are resupplying the front lines with ammunition are rightfully considered combatants because they are engaged in an attempt to destroy the enemy.(supporting them qua humans does not make him a combatant, but supporting them qua soldier does). So digging foxholes, reinforcing positions, etc. may legitimately make him a combatant even if he is firing over my head.

2. While any individual soldier is non-bellicose now he/she may very well start firing at me if we were to pursue a more direct attack. However, as point 1 was meant to demonstrate, it is not the actual firing at me that makes them a combatant, it is the fact that they are engaged in an overall activity to destroy someone else within a war that does so.

Even if we know in this battle on the front lines, 80% of soldiers in on are firing over our heads, then this situation is not very different from a sneak attack behind the lines. Although these people are not firing at me currently, it is reasonable to believe that they are currently engaged in an larger scale attempt to destroy me and would fire directly at me in different circumstances, therefore it is legitimate to currently consider them combatants.

This point is closely related to a epistemic point Heath White made.

3. Heath White said:"If you know that the enemy army has a 20% rate of serious belligerents, I think it is at least reasonable to shoot them on sight. (“Reasonable” meaning something like, “you can see why someone would think this, even if they’re wrong.”) However, if you are in a town where you know that 20% of the civilian population is engaged in guerrilla warfare against you, it is totally unreasonable to go shooting civilians on sight. The uniform makes a difference; it declares a presumption of hostility. The presumption can be defeated, but it’s the non-bellicose guy’s job to defeat it, e.g. by surrendering on sight."

I would agree but add that it is not the uniform itself that acts as the causal agent that creates the presumption of hostility. The uniform is simply a handy epistemic marker for me on the other side. What provides the presumption of hostility is the willing engagement within a chain of command of an army that is engaged in an attempt to wage war against another army.

Notice that the non-bellicose guy has to fire over my head. He cannot just refuse to fire at all precisely because he is given the order to fire. He has to fool not only me but those much closer to him as well (i.e. physically close to him). In the case of front line warfare everyone is trying to appear to be a combatant and everyone is actually following the majority of orders given to them in a chain of command. It is this willing activity that makes them a combatant.

This is exactly the opposite with the example of guerrilla warfare.

Here even those who are engaged in an attempt to destroy me try to appear as if they are not and the citizens are doing three things: Not engaged in an attempt to destroy me, Not trying to appear as if they are in an attempt to destroy me, and most importantly not following orders of a chain of command within a framework of those engaged in an attempt to destroy me.

I would go further and say that cases of guerrilla warfare, peacetime reprisals, peace keeping, etc. bring with them a whole separate set of ethical considerations that are a hybrid of jus in bello ethics, jus ad bellum ethics, and policing ethics, but that is an argument for another time.

4. You conclude your original post with: "When deciding whether the proportionality condition in jus ad bellum holds--whether the war would eliminate more evils than it would cause--one needs to count among the evils the many non-bellicose enemy soldiers who would die as a result of the war"

I would agree that these types of evils need to be considered in jus ad bellum calculations and that consideration is likely to make more wars unjustified. However, it is not clear why the deaths of non-bellicose would count any more than the deaths of bellicose combatants who were forced into service. Surely both these evils should be counted in proportionality of ends. But I'm not sure that one is more evil than the other.

(In other words: Proportionality of Ends needs to consider the status of human beings as they were before the war, when nearly all of us are non-combatants. The death of 10,000 even if they are soldiers, even if they are enemy soldiers needs to be considered as the death of 10,000 innocent and only the good outweighed by that can satisfy Prop of Ends.

Prop of Means, however, needs to consider the status within the war, when some are combatants and others are not.)

Thank you for the dose of realism. You've solved the problem that was bothering me. You're likely right that all the other activities that the soldiers who aim high do will qualify them as combatants, including such things as helping to pitch tents for those who do not aim high, etc.

From my point of view, this has a strong consequence. If one is drafted into what one knows to be an unjust war (maybe one also needs to add that one knows that one knows), shooting high is not enough. One must either ensure that one doesn't obey any orders that contribute to the war effort (except perhaps as a medic--that seems relevantly different) or one must conscientiously object. In either case, one is going to get found out pretty quickly, and, in many countries, executed. So one can presume that anyone who is in uniform is likely doing what he ought not, though of course he may be non-culpable.

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